In deciding questions of conservatorship, there is a presumption deeply embedded in the law that the child’s best interests are served by awarding custody to a natural parent (the “parental presumption”).
Moreover, the U.S. Supreme Court has held that parents enjoy a fundamental right to make decisions concerning the custody, care, and control of their children.
Accordingly, grandparents face significant hurdles in gaining custody or access to their grandchildren over the parents’ objection. An attorney for grandparents’ rights can help you understand your options.
Challenges to Grandparents
In the custody context, to overcome the presumption that a parent must be appointed as a managing conservator of a child, a court must find one of the following:
- Appointment of the parent or parents would not be in the child’s best interest because the appointment would significantly impair the child’s physical health or emotional development; or
- The parent has voluntarily relinquished actual care, control, and possession of the child to a nonparent, licensed child-placing agency, or authorized agency for a period of one year or more, a portion of which was within 90 days preceding the filing of the suit, and the appointment of the nonparent or agency as managing conservator is in the child’s best interest; or
- The parent has a history of family violence.
Possession and Access to Grandchildren
In addition to seeking conservatorship of a child, a grandparents rights lawyer can help a biological or adoptive grandparent may seek a court order granting possession of or access to a grandchild. There is a distinction under the law between “possession” and “access.”
A person with rights of “possession of” children may exercise possession and control of the children to the exclusion of all other persons, including the managing conservator, during periods of possession. By contrast, a person with rights of “access to” children may approach them, communicate with them, and visit with them, but may not take possession or control of the children away from the managing conservator.
A court may order reasonable possession of or access to a grandchild by a grandparent if all of the following requirements are met:
- At the time the relief is requested, at least one biological or adoptive parent of the child has not had that parent’s parental rights terminated;
- The grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent’s child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child’s physical health or emotional well-being; and
- The grandparent requesting possession of or access to the child is a parent of the child’s parent and that person:
- Has been incarcerated in jail or prison during the three-month period preceding the filing of the petition;
- Has been found by a court to be incompetent;
- Is dead; or
- Does not have actual or court-ordered possession of or access to the child